GBS: 'Last Orders,Time Gentlemen Please'

We now stand just two days away from the closure for objections to the Google Book Settlement and as predicted the voices on both sides are getting firmer, stronger and some are now realising the full implications of what stands before us.

Everyone who has read any of our articles will know were we stood last October on this seed changing proposed settlement. We actually support much of what Google are trying to achieve and applaud some of their achievements, but stand firmly opposed to other aspects of what we see is a flawed package. We now see clear opposition to the settlement, but continue to be surprised on how many still have not got to grips with it and have abdicated the decision to those ‘who know best’.

The question you must ask yourselves today is, where you stand and why? This is not a US only issue, nor is it about creating the world’s greatest library resource. It isn’t about public domain works, nor is it about in print and in copyright works. It is about orphans, foreign works and their authors and about sanctioning what some would describe as theft.

Many will argue that it’s the best offer in town and overlooking a few details, we couldn’t have a better deal. They will often raise that lack of a viable alternative as the reason to support it. They may well say that it will sort itself out over time and that it is impossible to change copyright any other way. Whatever the outcome we all will look back in two years time and will realise that this is the biggest opportunity and also the biggest threat facing publishing today and there will be no going back and whatever is decided, it will shape the publishing future landscape for authors, publishers, libraries, retailers, institutions and consumers.

As every pub landlord cries on closure, ‘last orders, time gentlemen please.’

It's Down to Selection not Age

So there is little value in those lost orphans and out of print books that Google are fighting over. Many soldier in the belief that the front list publishing fixation will continue, with that 13 week window deciding success and failure. However, others believe that the value lies not just in the bestseller punts of tomorrow, but also the wealth of material already published.

Some continue to believe that books rarely get a second chance and that if they have failed once, they will fail again. Also if the were successful first time, then they have had their 15 minutes of fame. This fixation on the front list often flies against all reason and the consumers continued interest in back lists and classics. We only have to look at film, music and other media, to see that there will always be a second new audience. Consumers rarely skip straight to the copyright page to see when a book was published and the publication date is irrelevant to many.

So why so many have books fallen by the wayside? Over time lists have often been exchanged or bought, publishers cease to trade, authors become impossible to trace and rights records become hidden in cupboards and filing boxes under thick layers of dust. It is therefore difficult to establish the rights owner and get permission to reprint. The truth is often as easy to publish a new title, than revisit the old and the print and distribution economics were often against a punt on a second life.

However, today’s digital technology changes this, offering low risk print on demand and short print runs, internet marketing and ecommerce to a viral audience from a virtual warehouse. The ebook extends this opportunity and now every book has to compete not in 13 week window, but against every title ever published. The key to re publishing is the same as with new titles – picking the winners. However, unlike new titles who’s visibility depends on marketing and placement, older titles can have a sales history which may also help in their selection. They also may be relatively cheap to acquire.

We have recently seen the success of Cambridge’s print on demand programme, Faber and Faber’s new classics and Penguin’s continual programme of refreshing the back list and keeping it imprint. We now read that Barnes & Noble will republish out-of-print books in redesigned hardcovers. The first 33 titles in the series, include works by Loren Eiseley, Norman Cohn, Ted Hughes and Owen Barfield.

Barnes and Noble have long be publishers, reprinters and packagers. In the eighties they had talented scouts such as John Kelly and Jeanette Limodjian who fed their successful mail order business with their Dorset imprint of highbrow selections. Remember titles such as, 'The Verbal Art of Self Defence' and 'The Mabinogion?' Now under the stewardship of Sterling Publishing we believe it is a return to proven ways. Importantly they are booksellers with a history of knowing what sells and have multiple sales platforms form which to promote and sell these new editions.

We believe that Barnes and Noble’s move is very wise and also significant in that it starts to return us to those early 18th century days of the likes of Robert Dodsley, when booksellers were bookbinders, booksellers, rights owners and publishers

Encore une fois

Amazon has announced a new program called AmazonEncore in which they will license and republish previously-published books that they believe have been overlooked and also by authors that they believe show potential for greater sales. The announcement notes that in addition to offering titles through Amazon, the Kindle store and Audible, they will make Encore books available to the trade. Amazon intend to publish the English-language edition of encore books in all countries where they have a web site.
The first book chosen is by 16-year-old Cayla Kluver and is her self-published fantasy romance novel LEGACY, which Encore will republish in hardcover in August. Amazon acquired world English rights from the original publisher Forsooth (created by Kluver's mother to publish the book).

It is not clear today whether all Encore’s books will be from previously self published titles and whether Amazon is trying to make serious inroads into attracting self published authors into their stable, or whether Amazon is taking steps to redefine itself as an end to end player. There is no reason why the same model can’t be applied to orphan works, previously mainstream published works under a new licence and whether they will also now buy into reprint runs. Amazon has the clout and focus to make any descent book a bestseller, even if that is within there own fortress. Some may say that this will further strengthens their control of the market and their bottom-line.

The driver for the new venture will be based on, "information such as customer reviews on Amazon websites." Amazon has long captured feedback and if added to its sales data and also that from its other services such as ABE it makes a solid base on which to select its titles. ‘Brought back by popular demand’ is also a very customer centric approach which will resonate with many who may today see shelf space being bought and what some may also call manufactured winners.

The Great Book Bank Robbery - The Final Month

Back in October, when we first wrote about what we called the Great Book Bank Robbery, we clearly saw Orphan Works as a major issue in the Google Book Settlement. It appeared to be a overly complex and ill conceived give away of copyright by bodies who did even represent the majority of the titles in question. We have long defended out of print but copyright material – 'orphans'. We aim to continue to do so even in the face of those bigger than us who just want what they see as ‘free and available’ or others see as public. The monopoly position granted Google by the back door may still happen, but now one month from objection closure, some are starting to stand up against it.

This weekend the New York Times published an article on the Google Book Settlement, 'Google’s Plan for Out-of-Print Books Is Challenges’. The article covers all sides, but now recognises a, ‘growing chorus is complaining that a far-reaching settlement of a suit brought against Google by publishers and authors is about to grant the company too much power over orphan works.’

Some may say that the scanning programme undertaken by Google was illegal and they are now potentially being rewarded, others that they are too big to fight, others such as their lawyer Alexander Macgillivray, that the agreement, ‘expands access to many of these hard-to-find books in a way that is great for Google, great for authors, great for publishers and great for readers.” He admitted it was the ‘great for Google’ but we all know that already.

In the words of Richard Sarnoff, former chairman of the Association of American Publishers and co-chairman of the American unit of Bertelsmann, the parent company of Random House, “What we were establishing was a renewed access to a huge corpus of material that was essentially lost in the bowels of a few great libraries.” The fact that it didn’t belong to him or his friends, appears immaterial. The fact that they could not be represented in this give away, obviously was immaterial. The fact that none of those effectively changing the law through the back door, were elected, was immaterial. The fact that neither the authors nor the publishers, represented the great libraries, was immaterial.

The Google Book Settlement remains a bad deal. Some say it was born out of the need to settle a case action suit that was only making lawyers rich, others that they picked on the one piece of common ground neither party owned and built a whole settlement around it. We hope the settlement gets stopped, that the industry draws breath and takes one step back and that it doesn't rush forward in response trying to fix a settlement with other half shot solutions.

Grimmelman Speaks Up On The Google Settlement

As the Google settlement draws ever closer everyone is increasingly being asked to stand up and be counted and some of the real position start to become clearer.

We would recommend James Grimmelman’s article ‘Speaking Up On Book Search’ Grimmlemann, the The New York Law School's Institute for Information Law and Policy and their lawyers Kornstein Veisz Wexler & Pollard, LLP have asked the court hearing the Google Book Search case to let them file a brief amicus curiae. Their brief will explain to the court why the case is all about the orphans.

The linked article also contains the letter of submission to the court.

There are those who want to change contracts and have ob reflection always done so. The want rights reversals to be anything of the past and to use POD and ebooks to effectively keep books in print. The only problem is that the original contract didn’t always know the future. Some want the change the revenue spilt and may belong interestingly to the previous group too.

There are those who actually want to free the orphan works and have fought hard to push legislation through to achieve this end. These are not passed yet but are close. They genuinely want lost books to be available for all in a similar way that public domain works are today. The challenge as always is the lack of records and the further back towards 192X you go the murkier it becomes.

There are those who want to revisit copyright full stop and believe that extending copyright from 56 years to life plus 75 years was a mistake and is should come down as it doesn't serve the public.

Some will support Google’s current settlement as a means to an end and not perfect but better than today. These may also believe that anyone can opt out and if they don’t can collect retrospectively. They will accept the digital exclusive monopoly that will be created because they believe it to be in the public interest. Some may say that where the US goes others will follow and we all know Google emissaries are working hard to spread the word.

So, we face a moral question whether if is right to take and seek legal blessing to do so, works that the law doesn’t permit today. The agreement is about whether those not represented can be and whether the change should be universal to all or restricted to one company to commercially exploit to the legal exclusion of others?
As an industry everyone is negligent in not building a rights repository and clearing house but some would argue that to be bribed into having one is not necessarily justification for granting exclusive rights to works whose ownership today is unclear.

Thew Great Book Bank Robbery - Its All About Orphans

As the clock ticks slowly towards the Google settlement closure, voices are starting to be heard and debate is starting to take place. It may be too little too late, but people are starting to question and unravel the complex settlement.

In an interesting article ‘It’s all about the orphans’ Brewster Kahle writing on OpenContentAlliance.com questions whether Google, the AAP, and the Authors Guild have now negotiated their own private solution to the problem of orphan works and created an ‘elaborate scheme for the exploitation of orphan works.’

We have written many times about orphan works and the moves to legalize their adoption both in the US and Europe and the fact that the settlement basically just takes them. We have questioned the publishing houses that had tried to previously kill off rights reversals and about this vast treasure trove of content that sits, often lost, between public domain and in print.

Kahle agrues;
The upshot, if the Settlement is approved, would be legal protection for Google, and only for Google, to scan and provide digital access to the orphan works. Presto! Like magic, Google proceeds without any need for legislation: their own private orphan works legislation.

Now, however, no one but Google will have access to the orphan class created by the Settlement, without enduring a similar class action lawsuit from the authors and publishers.

We may agree with Kahle we may not but what is important is that the Google Book Search Debate continues and what amazes us is the sheer lack of debate in many circles. This is either out of fear of being wrong, a case of the ‘blind leading the blind’ or just apathy to asking questions. Its similar to one of the conferences where the speakers speak down to their audience, there is no debate, no questions but at the break time everyone is taking about the questions they wanted to ask.

Below is a link to a synopsis of a discussion the implications of the Google Book Search Settlement at Georgetown last month. The debate involved James Grimmelman (New York Law) and Siva Vaidhyanathan (Univ. of Virginia).

‘Notes from Georgetown Symposium on Google Book Search Settlement’

Europeana Stutters into Life

Europeana, the European digital cultural database launched this month was immediately swamped and brought down by the demand on the service. The service now plans to be back ‘bigger and better’ by mid-December.

Europeana contains 2 million digitised books, audio and film material, photos, paintings, maps, manuscripts, newspapers and archival documents from more than 1,000 European cultural organisations such as that British Library. It plans to have over 10 million items in its database by 2010.

The main driver of the service according to a European Commission spokes person is to, ‘help save orphan books from oblivion...Forty per cent of the British Library is orphan - it’s not just a small phenomenon. There is a twentieth century cultural black hole as there is a huge amount copyrighted and orphan books. The question is what can one do about these out of print works? We may lose them from the cultural heritage.”

So we have a ‘cultural’ land grab by the establishment of Europe. We can’t help but say that appears no different than libraries sharing material today and lending this to users. As long as it stays within a ‘fair use’ remit and is not commercially exploited then this is different to the commercial land grab by Google and the US Orphan Act which are about legitimising the commercial adoption of orphans.

The question is whether others will see it the same or as legitimising the Great Book Robbery being performed by Google.

Nothing New Here!

It is often interesting how we all join up dots differently and that we know what we know but all too often don’t know what we don know. Today we were alerted to a recent piece in the Los Angeles Times ‘Reprints are King in Parts of the Book World.’

The report questioned, ‘whether the increasing number of reprints is because of reader dissatisfaction with contemporary literature or the flowering of an archivist, curatorial instinct, they are certainly part of the decentralization of literary culture.’ And also reported that, ‘Reprints may be how new novels that surely deserve larger audiences may finally find the readership they should have had the first time around..’

The lack of understanding of reprints, repackaging, classics, public domain works was clear.

There are those publishers that specialise in bringing back books into print that for whatever reason deserve to be available. Some may be literary classics, other erotica, or mystery, or romance, or war and military. The majority are public domain but others are published under licence and some are publishing orphans that are adopted. This is nothing new its been around as long as many can remember it has merely become easier to do.

Recent articles in the Bookseller have referenced a new Erotica list of Victorian titles, goulish tales both by Penguin and Wordsworth and Faber’s modern classics on demand and specialist lists by the likes of Persephone. Penguin’s value added digital extras also present a new twist and others have re-jacketed the Austin classics to look like chit lit! The list of publishers is significant and includes; Everyman, OUP, Penguin, Wordsworth, B&N, CRW, Studio, and many many more. But reprinting is not new neither is it a adverse reaction to modern literature. It is however interesting to see the variance in list price for what is often the same free text.

The new digital world makes it easier to find titles, digitally capture them and bring them back both digitally and imprint. The primary skill lies in the selection and understanding the potential winners. The next is to understand what needs to be done to represent and repackage them. The largest risk it that some may make a land grab and adopt orphans that are still in copyright because they can.

The consumer rarely picks up a book and looks at the copyright page and says, ‘I can’t read this its not new!’